F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

FEB 10 2003

PATRICK FISHER
Clerk

LAWRENCE L. KELLY,
Plaintiff - Appellant,
v.
JUDGE JAMES P. OHARA; JUDGE
RICHARD D. ROGERS; UNITED
STATES OF AMERICA,

No. 02-3423
D.C. No. 02-CV-4078-JAR
(D. Kansas)

Defendants - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and OBRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Lawrence L. Kelly, proceeding pro se, appeals the district courts dismissal
of his civil rights complaint brought pursuant to 42 U.S.C. 1981 and 1982.
This court exercises jurisdiction pursuant to 28 U.S.C. 1291 and affirms.
Kelly filed the instant action against United States Magistrate Judge James
P. OHara, United States District Judge Richard D. Rogers, and the United States
of America. The essence of Kellys allegations is that Judge OHara and Judge
Rogers ruled in favor of certain defendants in a prior lawsuit brought by Kelly,
even though, according to Kelly, his previous complaint was clearly meritorious.
In its order dismissing the instant action pursuant to Federal Rule of Civil
Procedure 12(b)(6), the district court patiently explained to Kelly that Judge
OHara and Judge Rogers were absolutely immune from suit for money damages.
See, e.g., Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam). The district
court further explained that neither of the very narrow exceptions to absolute
judicial immunitythe exception for nonjudicial actions and the exception for
actions taken in complete absence of jurisdictionwere implicated by Kellys
allegations. See generally id. at 11-12. In particular, the district court noted that
issuing pre-trial orders and granting summary judgment were clearly judicial
functions and that the district court clearly had jurisdiction to hear and resolve the
previous civil rights suit filed by Kelly which formed the basis of the allegations
in the instant complaint. Finally, the district court explained that Kellys
-2-

allegation of bad faith on the part of the defendant judges was not sufficient to
overcome judicial immunity. See id. at 11 (Judicial immunity is not overcome
by allegations of bad faith or malice . . . .); Pierson v. Ray, 386 U.S. 547, 554
(1967) ([I]mmunity applies even when the judge is accused of acting maliciously
and corruptly.). As to Kellys claims against the United States, the district court
observed that the United States was immune from suit as a sovereign. See United
States v. Mitchell, 445 U.S. 535, 538 (1980). Furthermore, the United States had
not waived its sovereign immunity for constitutional torts, see Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 410 (1971), and Kelly had not identified
any explicit waiver of immunity. Because Kelly could not amend his pro se
complaint to overcome these infirmities, the district court dismissed the complaint
with prejudice.
In his brief on appeal, Kelly simply asserts, without any citation to
authority, that [t]he Federal District Court cant stop me from sueing [sic]
anyone. The Laws I used are adequate and appropriate. For those reasons ably
set out in the district courts order of dismissal dated November 15th, 2002, this
assertion is wrong. Upon close consideration of Kellys brief on appeal and de
novo review of both the district courts order of dismissal and the entire appellate

-3-

record, this court AFFIRMS for substantially those reasons set out in the district
courts order of dismissal.
ENTERED FOR THE COURT

PER CURIAM

-4-